2017Da210952 Demurrer against distribution

KSPel loan Co., Ltd.

A

Seoul High Court Decision 2016Na2061922 Decided January 20, 2017

June 19, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Determination as to whether a fraudulent act constitutes a creditor’s property, if the property owned by the debtor is offered as a physical collateral for another creditor’s claim, the portion offered as a physical collateral cannot be deemed a debtor’s property for the general creditors. As such, if a real property with a physical collateral is transferred by a fraudulent act, only the balance obtained by deducting the amount of claims secured by other creditors from the value of the property offered as a physical collateral should be evaluated as an obligor’s active property. In such cases, where a joint mortgage has been established on several real property, the amount of claims secured by each real estate, when calculating the liability property, is the amount calculated by dividing the amount of claims secured by the joint mortgage in proportion to the value of each real property secured as a joint mortgage in light of the purport of Article 368 of the Civil Act, barring any special circumstance (see, e.g., Supreme Court Decisions 2013Da90402, Aug. 18, 2016; 2015Da214620, Jul. 29, 2016).

2. The court below acknowledged the following facts based on its adopted evidence, and determined that the establishment of the second collateral security right of this case only to the defendant who is one of the creditors constitutes a fraudulent act as a means of reducing the joint security of other general creditors who are the debtor B.

(1) In order to secure a loan claim amounting to KRW 120 million against B on August 16, 2012, the Defendant completed the registration of creation of a mortgage over the instant real estate owned by B (hereinafter referred to as the “first mortgage”) with respect to the creation of a mortgage over the maximum debt amount of KRW 70 million with respect to the instant real estate owned by B, G, and H (hereinafter referred to as the “first mortgage”). (2) On June 3, 2013, the Defendant completed the registration of creation of a mortgage over the instant real estate with respect to the creation of a mortgage over KRW 210 million with respect to the maximum debt amount of KRW 210 million with respect to the instant real estate (hereinafter referred to as the “second mortgage”). On June 3, 2013, the Defendant cancelled the instant mortgage under the name of the Defendant on the 5th of the same month.

(3) On June 5, 2013, the instant I real estate had been subject to the registration of ownership transfer under the J’s name. Since then, prior collateral security (including joint collateral security in the name of a new savings bank that covers the instant real estate as joint collateral) was cancelled in sequence from June 7, 2013 to June 11, 2013 on the ground of termination on June 7, 2013.

(4) At the time of the establishment of the 2rd mortgage, the instant real estate and the 1st real estate were established under the joint collateral under the name of the new savings bank with the said real estate as joint collateral (debtor D and the maximum debt amount KRW 585 million). However, since each of the said real estate is owned by the surety, the amount of the secured debt to be borne by each of the said real estate is the amount calculated by dividing the maximum debt amount in proportion to the value thereof by 50 million won.

(5) At the time of the establishment of the second collateral security right, the market price of the instant real estate is KRW 345 million. The sum of the maximum debt amount of senior collateral security established on the instant real estate at the time is KRW 181,198,347 (i.e., the maximum debt amount under the name of the new savings bank + KRW 111,198,347 + KRW 70 million). Thus, the remaining value of the instant real estate is KRW 163,801,653 (i.e., KRW 345 million).

(6) On the other hand, in the case of the instant I real estate, the market value of the instant I real estate is KRW 1.47 million, and the sum of the maximum debt amount of the instant I real estate over the Defendant’s right to collateral security (hereinafter “instant right to collateral security”) established in the name of the said real estate at the time is KRW 1,517,601,652 (=209,300,000 + KRW 214,50,000 + KRW 120,000 + KRW 300,000 + KRW 20,000,000 + KRW 473,801,652). Therefore, the instant right to collateral security had no value as security.

(7) After the creation of the instant secondary collateral security, the priority mortgage was cancelled under the name of the new savings bank. Accordingly, the remaining value of the instant real estate has decreased to KRW 163,801,653 [The remaining value of the instant real estate = 111,198,347 - 70 million + KRW 345 million - KRW 20 million].

3. We examine the above facts in light of the legal principles as seen earlier.

Whether the Defendant’s establishment of the instant 2-mortgage constitutes a fraudulent act by cancelling the instant I-mortgage or establishing the instant 2-mortgage ought to be determined by comparing the actual collateral value at the time of establishment of the instant 2-mortgage.

In calculating the value of the 2rd mortgage and the Ird mortgage, the lower court calculated the amount of the secured debt of the instant real estate and the Ird mortgage on the basis of the maximum debt amount, not the amount actually incurred, but the amount of the secured debt of the instant real estate and the Ird mortgage on the basis of the maximum debt amount, and calculated the amount apportioned in proportion to the value of the joint secured property in the name of the new savings bank. As a result, the lower court determined that the

However, if the sum of the actual secured claims of the instant real estate is lower than the market price of the instant real estate, the instant I collateral has actual secured value as much as the balance remaining after deducting the aggregate amount of the secured claims actually accrued from the market price, and as such, the portion cannot be deemed as the property for general creditors’ liability, so it is difficult to accept the lower court’s determination that there was no value of the instant collateral security after calculating the maximum debt amount on the basis of the maximum debt amount.

Therefore, the lower court should have deliberated and confirmed the actual secured claim of the instant real estate and each senior secured claim established on the instant real estate at the time of the establishment of the instant second secured mortgage, and have assessed the actual secured value of the instant second secured mortgage and the I secured mortgage compared with the value of each of the said real estate.

Nevertheless, the lower court, on the basis of the maximum debt amount at the time, determined whether the act of establishing the second right to collateral security of this case was constituted a fraudulent act by failing to exhaust all necessary deliberations as to the actual secured debt amount at the time. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of the navigational wave and failing to exhaust all necessary deliberations

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik, Counsel for the defendant

Justices Park Young-young

Chief Justice Kim Jong-il